MANU/RH/0697/1991

Equivalent/Neutral Citation: RLW1992(1)Raj547

IN THE HIGH COURT OF RAJASTHAN

S.B. Civil Revision Petition No. 447 of 1991
Decided On: 14.11.1991
Navin Graha Nirman Sahakari Samiti Ltd. Vs. Shyam Prakash Sharma
Hon'ble Judges/Coram:
Nagendra Kumar Jain, J.
Counsels:
For Appellant/Petitioner/Plaintiff: K.C. Samdariya, Advocate
RLW Case Note:
C.P.C., Sec. 115, Order, 7, Rule 11 and Rajasthan Co-operative Societies Act,
1965, Sec. 75 & 143 - Notice u/s. 143 of the Act of 1965 given but the
Registrar failed to decide the dispute within two months--Jurisdiction of court
can not be ousted--The lower court can decide the question of jurisdiction of
the court after recording evidence by framing issue on the question of
jurisdiction and will decide it first on merits--Lower court has not committed
any illegality or material irregularity. [9]

JUDGMENT
Nagendra Kumar Jain, J.
1 . This revision petition is directed against the order of learned Civil Judge, Jodhpur
dated 25.7.1991.
2 . Mr. K.C. Samdariya, learned counsel for the petitioner has submitted that the suit
was barred by the provisions of Sec. 75 of the Rajasthan Cooperative Societies Act,
1965 thus the learned trial court has erred in dismissing the application dt. 16.7.91
under 0.7 Rule 11 CPC while disposing of the injunction application and in not
dismissing the plaint. He has placed reliance on T. Aivandandam V.T.V. Satyapal
(MANU/SC/0034/1977 : AIR 1977 SC 2421), Bhagwan Das vs. Goswami Brijesh Kumari
& Ors. (1983 Raj. 3), Association of Radha Swami Dera Baba Baggar Singhji vs. Pratap
Singh & Ors. (MANU/RH/0249/1984 : 1984 WLN (UC) 284), Smt. Patasi Bai & Ors. vs.
Ratanlal (1990 (3) J.T.S.C. 68) and Smt. Kanchan Bai vs. Khetsidas & Ors. decided on
05.9.1990. (S.B. Civil Revision Petition No. 297/89 (RHC) decided on 05.9.1990)
3. I have heard learned counsel for the petitioner and perused the case law cited by the
learned counsel for the petitioner.
4 . In T. Arivandandam vs. T.V. Satyapal (supra), their Lordships has expressed
themselves strongly against unrighteous chain litigation leading to ex parte injunction
orders which tended to give rise to gamble in litigation into easy courts. It was also
observed that Judge should not succumb to ex parte pressure in unmerited cases as it
would tend to devolve the judicial process. But their Lordships did not intend to enlarge
the scope of the provisions of Order VII, Rule 11 C.P.C. So as to authorise the Court to
decide at that stage all questions of law, whose determination was necessary in the suit,
to conclude the 'actual' right or claim of one party or the other.
5. In Bhagwan Das vs. Goswami Brijesh Kumari (supra) it has been observed that the
documents can also be looked into while considering the averments of the plaint for the
purpose of deciding the question that the plaint discloses a cause of action or not. It
has also been observed that the question relating to the validity or invalidity of the
documents cannot be considered at the stage of deciding an application under O. 7, R.
11.
In Association of Radha Swami vs. Pratap Singh (supra) it has been observed that the
court can also look into the documents filed with the plaint.
6. In Patasi Bai vs. Ratanlal (supra) admittedly no cause of action was disclosed from
the averments of the plaint, therefore, Supreme Court while deciding case held that the
High Court has also ignored its effect.
7 . In Kanchan Bai vs. Khetsidas (supra), the petitioner had claimed to become full
aware. It was alleged that the contract of sale did not prescribe any period untenable
the contract was to be performed. Thus, claimed benefit of Sec. 54 of the Limitation Act
and prayed for a decree for specific performance. Learned trial court on 23.11.1985
considered the averments and documents annexed with the plaint and rejected the
plaint as time barred under 0.7. Rule 11. On appeal the learned Addl. Distt. Judge set
aside the order of the trial court as it took into consideration the documents which was
not proper. The learned trial court was directed to reconsider its order on the basis of
the plaint only. This order was set aside by the High Court in Misc. Appeal No. 90/86 on
17.1.89 and the appellate court was directed to decide the appeal afresh on merits in
terms of 0.7 Rule 11 C.P.C. an the basis of averments of the plaint. The case was
reconsidered by the learned Addl. Distt. Judge and he was of the view that the learned
trial Court could not have taken into consideration any document filed by the either
side. The learned Addl. Distt. Judge allowed the appeal and set aside the order of
rejection of the plaint. Against the order Kanchan Bai had come before this court. This
Court relying on Bhagwan Das vs. Goswami Brijesh Kumari (supra) and Association of
Radha Swami Dera Bada Baggar Singhji vs. Pratap Singh (supra) held that the court can
also look into the documents filed with the plaint for the purpose of deciding the
question that the plaint discloses a cause of action or not and allowed the revision and
restored the order of trial court rejecting the plaint as time barred.
8 . The scope of revision is limited one and this Court can interfere in the revisional
jurisdiction, if the said Judge had no jurisdiction to make the order it has made or if the
trial court had acted in breach of any provision of law or committed any error of
procedure which was material and may have affected the ultimate decision, otherwise
not, even if this court may not agree with the conclusion on the question of fact and
law.
9 . In the instant case, the plaintiff has alleged that he is one of the member of the
petitioner society and has come to the civil court for redressal of his grievance with the
non-petitioner pertaining to plot No. 330. In reply to the application under 0.7 Rule 11
C.P.C. it was stated that the plaintiff gave a notice u/s. 143 of the Rajasthan
Cooperative Societies Act to the Registrar to decide the disputed within two months but
the Registrar has not decided the dispute nor replied notice. Therefore, Sec. 75 is not
applicable. It was also stated that preliminary issue regarding jurisdiction can only be
decided after filing written statement. The argument that the Civil Court is not
competent to decide the issue as it is within the jurisdiction and purview of Sec. 75 of
the Act. But the trial court while considering the arguments observed that to oust the
jurisdiction on the basis of material it will be appropriate to decide the question of
jurisdiction of the court after recording evidence by framing issue on the question of
jurisdiction and this question cannot be decided on an application under 0.39 Rule 1
and 2 C.P.C. In view of this the case law cited by the learned counsel for the appellant
is not applicable to the facts of the present case. However, the learned trial court will
frame preliminary issue regarding jurisdiction and will decide it first on merits. Thus,
the learned lower court while passing the order dt. 25.7.1991 has not acted in the
exercise of its jurisdiction illegally or with material irregularity, so as to call for any
interference.
10. In the result, this revision petition is dismissed.
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